Tag Archives: Diaz de la Portilla

The latest proposal to amend growth management law in Florida is embodied in two companion bills: CS/CS/CS/HB 383 and CS/SB 284 (for those who don’t speak the lingo of the legislative session, HB means “House Bill”; SB means “Senate Bill”; CS means a committee substitute amending the original bill). These companion bills propose an extensive expansion to the Bert J. Harris Jr. Property Rights Protection Act.

In theory, these bills are an attempt to codify the United States Supreme Court’s decision in Koontz v. Saint Johns River Water Management District. Koontz limited the ability of state and local governments to demand exactions – property or money – as part of the approval of proposed development. Although exactions are still allowable, they must be justified by a connection with the goal the local government is seeking to implement (an “essential nexus to a legitimate public purpose”) and by a rough proportionality between the exaction and the impact the development will have. These bills create a new cause of action under the Bert Harris Act for a landowner who believes they have been subjected to an inappropriate exaction.

While many developers probably support this bill, if passed it may adversely affect many development proposals. The bill allows a developer to agree to a condition on a development order, obtain development approval, and then sue the local government for having required an illegal exaction. Given that threat, most local governments will simply deny approval of the project whether or not the developer is genuinely willing to make concessions. The developer is then faced with the choice of dropping his development or instituting a Bert Harris action (which is an expensive process) and then attempting to enter into a settlement agreement with the local government for the same concessions they were willing to offer all along. It makes the process more cumbersome, more expensive, and less predictable.

The bill also allows local governments to treat any claim made under the Bert Harris Act as “litigation,” meaning that they can meet with the developer’s attorneys privately to discuss settlement. Although that provision may encourage compromises and settlements, it encourages them in a way that undermines public input and government in the sunshine. Ultimately these “shade” meetings undermine public confidence in the decisions made by their elected officials.

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